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Symposium on "Big Business and the Roberts Court":

Tomorrow I will be participating in the Santa Clara Law Review symposium on "Big Business and the Roberts Court: Explaining the Court's Receptiveness to Business Interests." Jeffrey Rosen, whose NYT magazine article "Supreme Court, Inc." no doubt helped inspire the conference, will deliver the keynote address tomorrow afternoon. (We discussed Rosen's article on the VC here.) Additional speakers include litigators and academics including Tracey George (Vanderbilt), Pam Karlan (Stanford), and Vikram Amar (UC Davis), among others.

In my remarks I will raise questions about what it means to say that the Roberts Court is substantively "pro-business," and take a closer look at the various environmental cases decided by the Roberts Court. If the Court is meaningfully pro-business, one might expect that the Court would be hostile to environmental regulation or at least sympathetic to business challenges to regulatory measures. Yet no such tendency is visible in the environmental decisions rendered by the Roberts Court thus far. If there is evidence that the Roberts Court is "pro-business," the evidence must be found elsewhere.

I addressed the broader claim that the Roberts Court is pro-business in Part III of my response to Erwin Chemerinsky's article on the first three years of the Roberts Court. Chemerinsky argued that the Roberts Court has shown itself to be particularly pro-business, and here is a portion of my response.

Dean Chemerinsky is likely correct that, in important respects, the Roberts Court could be seen as "pro-business." But this is not because the Court has been particularly aggressive in striking down government regulation or erecting constitutional barriers to economic regulation. This is no pre-New Deal Court. Nor is the Court's apparent solicitude for business concerns particularly rigid or ideological. To the contrary, the results in most business law cases are quite lopsided, and rarely the result of an ideological division on the Court. In this area, 5-4 cases are the exception, not the rule. . . .

Business-related cases appear to occupy a major share of the Roberts Court's shrunken docket -- over one-third of the cases accepted and argued in each of the past three terms. It also appears that business advocates have had a relatively successful run of late. In OT 2006, for example, the litigation arm of the U.S. Chamber of Commerce filed briefs in fifteen cases, winning thirteen. This may be evidence that the business community has tremendous influence on the Court. Or it may indicate that its attorneys are particularly good at picking winners and marshaling the organization's resources for those cases in which it can have the greatest impact.

Some call the Court "pro-business" because there is no crusading liberal or "progressive" justice on the Court. There is no justice ready to follow William O. Douglas' counsel to "bend the law in favor of the environment and against the corporations." But this, in itself, does not make the Court pro-business, particularly as there are no justices on the Court ready to do the opposite. Rather, most justices appear to approach the majority of business law cases as legal questions deserving of careful legal analysis and resolution in accordance with the dictates of law. With the exception of the punitive damages cases, the Court's business docket focuses on statutory matters in which Congress retains the upper hand. Most cases require the Court to interpret or apply and enforce legislative accommodations, and leave Congress ample room to correct course. . . .

To the extent the Roberts Court is pro-business, it is so not because it has embraced an aggressive agenda to impose constitutional constraints on the government's power to regulate economic activity or to rewrite the law to favor business interests. . . . Rather, the Roberts Court can be called pro-business insofar as it is sympathetic to some basic business oriented legal claims, reads statutes narrowly, resists finding implied causes of action, has adopted a skeptical view of antitrust complaints, and does not place its finger on the scales to assist non-business litigants.

I look forward to tomorrow's conference and (time-permitting) hope to blog some highlights.

wt (www):
Yes, please do blog the highlights. I'm particularly curious what Professor Vik Amar will say, as I tend to think of him as both incisive and fair to conservatives, though he is on the left side of aisle.
1.22.2009 9:49pm
Bronco:
Enjoy your visit to Santa Clara!
1.22.2009 10:33pm
Christopher Cooke (mail):
I think Ledbetter was a pro-Business decision, and ideologically based, and not faithful to Congress' purpose.

I think Central Bank and its latest incarnation, Stoneridge Partners v. Scientific-American, were conservative pro-big business decisions cutting back on an implied right of action, with really little solid reasoning to support the result.
While one can debate whether there every should have been an implied cause of action under Rule 10b-5 (in my view, there should not have been, because of the express remedy in Section 18 of the Exchange Act), Congress repeatedly ratified it. Cutting out aiding and abetting and scheme liability reflects plain hostility to the cause of action (I believe Roberts said during the argument that since the Courts made it up, they can decide its contours).

Other cases, I agree, are driven more by neutral application of statutory interpretation.

Anyway, welcome to California (unfortunately, after 70 degree weather, we are now experiencing rain/drizzle).
1.22.2009 11:47pm
Bruce_M (mail) (www):
But this, in itself, does not make the Court pro-business, particularly as there are no justices on the Court ready to do the opposite. Rather, most justices appear to approach the majority of business law cases as legal questions deserving of careful legal analysis and resolution in accordance with the dictates of law.

That's exactly right. The thing is, though, that a lot of people see it as being "pro-business" to take emotion, humanity, and sympathy out of a "David and Goliath" type case where it's a big corporation (e.g. WalMart) against an underdog individual who the law seemingly permitted to get screwed. To just look at it as a legal question and ignore the human interest issues (which is what courts are supposed to do) will always favor the big corporation, because they're the ones who lobbied to get the law passed that forms the basis of the legal question presented to the Court.

Big corporation pays lobbyists and congresspeople to get law X passed. Law X benefits the corporation (or its industry at large) while harming individual customers or employees. A lawsuit arises over law X. The Court does what it's supposed to do and decide a legal issue without bias, emotion, or sympathy towards any of the parties, which results in a victory for the big coporation 99% of the time. It's practically impossible under today's jurisprudence to get a statute, let alone a regulatory/business statute, tossed out as unconstitutional. Since the corporations were the ones who literally wrote the law, it's highly unlikely that there will be any ambiguity in the statute.

The end result is the Big Corporation wins nearly every time.

I don't like it, but it has more to do with longstanding legal principles and corruption in the legislative system than the SCOTUS justices being biased in favor of big business. At least, that's how I see it.
1.22.2009 11:50pm
CB55 (mail):
Bring a rain coat. It's winter. The hills are green. Fifty degrees at noon. Not much to do in Santa Clara except shop at Valley Fair Mall and eat in nearby Cupertino at the Alexander's Steakhouse. Silicon Valley might be the biggest little country region you'll visit this year.
1.23.2009 4:30am
David Warner:
"Rather, the Roberts Court can be called pro-business insofar as it is sympathetic to some basic business oriented legal claims, reads statutes narrowly, resists finding implied causes of action, has adopted a skeptical view of antitrust complaints, and does not place its finger on the scales to assist non-business litigants."

Which, in the long run, also makes it pro-public and thus likely pro-environment, given the historical correlation between environmental protection and respect for the rule of law.
1.23.2009 10:20am
Bruce_M (mail) (www):
David Warner:

I'd like to think so, assuming consistency.
1.24.2009 1:34am

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